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Bar Prep > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

Personal Jurisdiction

A
  1. State must have a LONG ARM statute authorizing jxn
  2. Must be CONSTITUTIONAL (minimum contacts); defendant must have PURPOSEFUL CONTACTS with the forum state such that it would be FAIR and reasonable to exercise personal jurisdiction over him.
    - Defendant took actions that were purposely directed toward the forum state and from which the defendant derived the benefits and protections of the state’s laws.

SPECIFIC: for the complained-of cause of action; close connection between the plaintiff’s CAUSE OF ACTION and the CONTACT. Are the contacts related to the action? Did defendant do anything to put their product in state?
- FAIRNESS: must not offend “traditional notions of fair play and substantial justice.” Consider

GENERAL: all causes of action; defendant must be “AT HOME,” essentially domiciled in the state.
- Burden on the defendant in terms of convenience in defending the action; will not prevail unless the burden to the defendant is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.”

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2
Q

Venue

A

Federal venue in civil actions is proper in:
1. The DISTRICT where any DEFENDANT resides, IF ALL defendants are RESIDENTS of the STATE in which the district is located; A business-type entity resides in any district where it is subject to PJ.
2. District in which a substantial part of the events or omissions GIVING RISE to the claim occurred.
[Could be both!]
3. Fallback, anywhere where D is subject to PJ

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3
Q

Attorney Work Product Doctrine

A

Created by an attorney in anticipation of litigation. Protects documents prepared by PARTY / REPRESENTATIVE, e.g. acting as an agent of the attorney.

  • QUALIFIED immunity from discovery
  • Opposing party must show substantial need, cannot obtain the same materials without undue hardship, e.g., dead witness, materials taking shortly after the incident, “fresh” sources that cannot be recreated

“In anticipation of litigation” Litigation must be imminent, not theoretical

  • Has a case been filed?
  • Has litigation been threatened?
  • Were attorney impressions / trial strategy included in the materials?
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4
Q

Claim preclusion

A

Generally, a claimant is REQUIRED to assert all CAUSES OF ACTION arising out of the SAME TRANSACTION OR OCCURRENCE that is the subject matter of the claim
- Once there is final judgment on the merits of plaintiff’s claim, which cannot assert any other claims relating to the same FACTS in a subsequent suit against the same defendant.

Aka res judicata. For claim preclusion to apply -

  1. The earlier judgment must be a valid, FINAL judgment on the MERITS
    - Lack of prosecution (sometimes, unless court says otherwise)
  2. The cases must be brought by the SAME claimant against the same defendant
    - In same POSITIONS!
  3. The same CAUSE OF ACTION must be involved in the later suit- Claim preclusion does not bar a claim by an opposing party! That’s a counterclaim.

* BAR: When the plaintiff LOSES the earlier case, claim preclusion “bars” further litigation
* MERGE: When the plaintiff WINS the earlier case, the different theories “merge” to prevent further litigation

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5
Q

** Constitutional Notice

A

Due process requires that the method of giving notice must have a REASONABLE prospect of giving ACTUAL notice.
- Posting of notice is insufficient to notify persons whose names and addresses are known. These persons must be notified at least by ordinary MAIL.

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6
Q

Discoverability of expert materials

A
  • Draft reports and draft disclosures of “trial” experts are work product, not discoverable
  • Confidential communications between such experts and counsel for the party are also generally protected under the work product doctrine, except for communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.
  • ID’s of experts expected to be used at TRIAL is discoverable
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7
Q

Discovery disclosures that need not be requested, must be disclosed

A

Initial disclosures

  1. Names of INDIVIDUALS likely to have discoverable information, even if they won’t be used at trial, and the subject of that information.
    - Unless use would be solely for impeachment
  2. Copies or descriptions of DOCUMENTS, ESI, tangible things that are in the disclosing party’s POSSESSION or control and that the disclosing party may use to SUPPORT its claims or defenses
    - Unless use would be solely for impeachment
    - Must only produce documents relevant to its OWN claims or defenses
    - It does not matter who wrote the document, etc.
  3. Existence of an INSURANCE policy if the insurer may be liable for the judgment.
    - No need to show RELEVANCE to the claims and defenses of the parties / that the discovery of insurance coverage would lead to other admissible evidence
  4. Computation of DAMAGES, materials supporting it
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8
Q

Diversity jurisdiction

A

For diversity of citizenship jurisdiction to be proper, there must be complete diversity of citizenship

  • Complete diversity: each plaintiff must be of diverse state citizenship of every defendant when the suit is FILED
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9
Q

** Effect of JMOL / Motion for a New Trial

A

** IF doesn’t file RJMOL, prevents the appellate court from entering judgment. Can still do new trial, though

To preserve the issue of sufficiency of the evidence, the complaining party must either object at trial by filing a motion for judgment as a matter of law (“JMOL”)—which then must be RENEWED post-trial in order for the appellate court to enter judgment based on the evidence—and/or file a motion for a new trial.

  • Ideally, both are filed to enable the appellate court to grant the appropriate relief.

. However, by moving for a new trial, the food company preserved the issue of sufficiency of the evidence, although it will only be able to get a new trial. (A) and (B) are incorrect because the food company failed to renew the JMOL motion, thus preventing the appellate court from entering judgment for it on appeal. (B) and (D) are incorrect because the food company properly preserved the new trial motion based on the sufficiency of the evidence.

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10
Q

The Erie Doctrine

A

Under the Erie doctrine, when a state law-based claim is brought in federal court based on DIVERSITY of citizenship, the federal court generally applies the substantive law of the state in which it is sitting.
- However, where a specific federal statute or the FRCP are on point, the federal court must apply federal procedural law as long as the federal rule is valid, i.e., Under the Rules Enabling Act, a Federal Rule is valid if it deals with “practice or procedure” and does not “abridge, enlarge, or modify” a substantive right.

  • If there is no federal procedure law on point, and it is unclear whether the state matter is substantive or procedural, use
    1. The “outcome determination” test: an issue is substantive if it substantially affects the outcome of the case; or
    2. The “balance of interests” test: the federal court is to weigh whether the state or federal judicial system has the greater interest in having its rule applied

Procedural rules:

  • Requirements for a jury verdict
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11
Q

Erie Doctrine Approach

A
  1. ON POINT: is there some federal law (including the FRCP) that is so on point that it conflicts with state law?
    - If YES: apply the FEDERAL law, as long as it is VALID (Supremacy Clause)
  2. NOT ON POINT: if there is no federal law on point, the federal judge must apply STATE law if the issue to be decided is SUBSTANITIVE. Always apply the state law on -
    i. Conflict of law rules / choice of law
    ii. Elements of a claim / defense
    iii. SOL
    iv. Tolling SOL
    v. Standard for granting a new trial
  3. NOT ON POINT AND NOT CLEARLY SUBSTANTIVE: if there is no federal law on point and the issue is not one of the 5 listed above, the federal judge must determine whether the issue is “substantive”
    - Outcome determinative
    - Balance of interests (state v. federal system)
    - Avoid forum shopping
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12
Q

Even if the requirements for diversity jurisdiction are met, which cases will the federal court nonetheless refuse to hear?

A

Generally, federal courts will not take jurisdiction over actions involving the ISSUANCE of

  1. A divorce decree
  2. Alimony
  3. Child custody

Very narrow exception, case must actually be about issuance

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13
Q

Federal Question Jxn

A

Claim must ARISE OUT OF Federal Law, i.e., the Constitution, laws, or treaties of the US

Federal law creates RIGHT to recover.

  • How is Federal law coming into the case? If just defense, insufficient
  • Cannot merely implicate federal issues.
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14
Q

** Forum Defendant Rule

A

This is the “forum defendant rule,” which has been understood to prevent a home-state defendant from removing to federal court based solely on diversity.

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15
Q

** Forum Non Conveniens

A

Federal courts typically will transfer (rather than dismiss) a case for convenience reasons under 28 U.S.C. section 1404 when the more convenient forum lies in another federal judicial district.
- A dismissal based on forum non conveniens usually is used when the federal court cannot transfer the action, such as when the more convenient forum is in a foreign country.

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16
Q

Grounds for obtaining relief from judgment

A

Left to the trial judge’s discretion, and, on appeal, her decision will be reviewed on an “abuse of discretion” standard.

Made within a reasonable time not to exceed ONE YEAR

  1. Mistake, inadvertence, surprise, or excusable neglect
  2. Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
  3. Fraud, misrepresentation, or other misconduct of an adverse party

Made within a reasonable time, NO TIME LIMIT

  1. Judgment is void
  2. Judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application
  3. Any other reason justifying relief from the operation of the judgment

ANY time

  1. Correcting clerical mistakes
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17
Q

** Is a PJ ruling appealable?

A

(A) is correct. With certain exceptions by rule or statute, only final judgments may be appealed. A final judgment is one that disposes of the whole case on its merits. Since the case was still pending after the denial of a motion to dismiss on the basis of a lack of personal jurisdiction, the judgment here was not a final judgment and thus was not appealable. (B) is incorrect because an order determining personal jurisdiction may be appealed (and is not within the sole discretion of the district court), but the order must be “final” (that is, it must dispose of all claims by all parties). (C) is an incorrect statement of law and the final order rule. The order must be “final” at the trial court level, not be potentially made final by an appellate court ruling. (D) again is an incorrect statement of law. The final order rule may not be circumvented by the mere raising of a constitutional issue.

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18
Q

Issue preclusion

A

Aka collateral estoppel, a judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues -

  1. Actually LITIGATED and
  2. ESSENTIAL to the judgment in the first action.
  3. Issues in both actions must be the same
  4. Final judgment on that issue
  5. the party against whom it is being invoked must have had fair opportunity to be heard
  6. posture of the case must be such that it would not be unfair or inequitable to apply collateral estoppel
  • The issue is deemed established in the second case without need to proffer evidence on it

Traditional “mutuality” rule: only someone who was a party (or in privity with a party) in the previous case can use issue preclusion.
- Requirement is not imposed by due process and has been subject to modification in certain circumstances to allow nonparties to take advantage of a prior judgment.

Offensive issue preclusion: courts have been very reluctant to permit a NONPARTY to USE issue preclusion to aid him offensively (as a plaintiff) to obtain relief, but the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so

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19
Q

** Juror misconduct

A

New trial may be granted because of serious error during trial, inclduing jury misconduct under some circumstances

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20
Q

** Motion to strike insufficient defense / redundancies

A

(D) is correct. Before responding to a pleading or, if no responsive pleading is permitted, within 21 days after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. Since the prior lawsuit is irrelevant to the current lawsuit, the purchaser should move to strike the defense. (A) is incorrect. A denial of the defense would be treating the defense as valid. It would leave the defense pending for trial, and evidence about the prior lawsuit in theory could be introduced. It is far better to have the defense stricken prior to trial, as it saves time at trial and prevents the jury from potentially hearing any facts about the prior lawsuit. (B) is incorrect. There is no indication that the seller knew the defense to be a sham, so it is unlikely that the court would impose any other sanction outside of striking the pleading. Absent any evidence of a Rule 11 violation, the matter may be best handled in a more direct manner by moving to strike the pleading. (C) is incorrect. If the lawsuit is irrelevant to the current proceedings, the purchaser should not add allegations about the differences between the two suits. Again, this strategy would be treating the defense as valid, which should not be the purchaser’s strategy.

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21
Q

** New Trial

A

May be granted because of a serious error during trial
Standard: jury verdict is against the weight of the evidence
- Judge cannot replace jury’s finding with own absent some serious error
- Jury verdict is not overturned lightly

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22
Q

** Recognizing a preclusive judgment

A

Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would, i.e., the law of the rendering state generally controls the preclusive effect of the judgment
- When “case one” has been decided in state court, the court in case two generally will apply the claim or issue preclusion of the jurisdiction that decided case one

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23
Q

Removal

A

Under 28 U.S.C. section 1441, a DEFENDANT may remove an action that could have originally been brought in the federal courts.

  • The federal judge does not have the discretion to decline removal
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24
Q

Required disclosures

A

All information then reasonably available that is not privileged and not work product

  1. Initial disclosures
  2. Expert testimony
  3. Pre-trial disclosures
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25
Q

** Requirements for a valid jury decision

A

In federal civil cases, a verdict must be unanimous unless the parties agree to the contrary.

  • The jury must begin with at least six and not more than 12 jurors, and the parties may stipulate that the verdict may be returned without unanimity and that a jury verdict of fewer than six persons is acceptable
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26
Q

** RJMOL

A

JMOL must be made during trial: jury does not have legally sufficient basis for verdict
- Viewed in the light most favorable to the moving party

Grounds limited to what was made in the JMOL
Must be made within 28 days of judgment

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27
Q

Scope of discovery

A
  1. RELEVANT and PROPORTIONAL
  2. Not PRIVILEGED
  3. Not WORK-PRODUCT

Discovery may be had of any non-privileged matter that is relevant to any party’s claim or defense, as long as the information being sought can reasonably lead to admissible evidence.

Court will also consider

  • Costs of discovery
  • Needs of case
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28
Q

Service of process on a foreign corporation

A

Service on a foreign corp may be made

  1. In accordance with international treaty
  2. In accordance with the foreign country’s laws
  3. as the foreign authority directs in a response letter for guidance
  4. by having the clerk of court mail process to the defendant
  5. by any other means not prohibited by international agreement
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29
Q

Service of process on an individual under the FRCP

A

Service of process can be made by -

  1. Personal service
  2. Service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein
  3. Service upon an authorized agent of the defendant

* Alternatively, service may be made under state rules or by mail under the waiver of service provision of Rule 4(d).

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30
Q

Service of process under state law

A

Under FRCP, summons and complaint may be served on an individual other than an infant or incompetent pursuant to the STATE LAW in which the district court is located.
- The state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action (also Constitutional)

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31
Q

Standard for summary judgment

A

Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

  • Genuinely disputed material fact: a dispute backed by ADMISSIBLE EVIDENCE on BOTH sides of the issue
  • Do not weigh credibility of witnesses
  • Evidence must go to the RELEVANT ISSUE

** A party asserting that a fact is genuinely disputed must support the assertion by citing particular PARTS of the record, including affidavits or declarations, stipulations, or discovery materials.

  • Cannot simply rely on the complaint allegations
  • If he cannot do so, Rule 56(d) authorizes him to ask the court to defer action or deny the summary judgment motion to allow time to obtain affidavits or declarations or to take discovery
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32
Q

Supplemental Jurisdiction

A

When the federal court HAS SMJ over one claim, it has DISCRETION to exercise supplemental jurisdiction over RELATED CLAIMS that derive from the SAME COMMON NUCLEUS OF OPERATIVE FACT (same event gave rise to claims) and are such that a plaintiff would ORDINARILY be expected to try them in a single judicial proceeding.

  • A co-plaintiff with a below-limit claim generally can use supplemental jurisdiction to have his claim heard so long as does not destroy complete diversity
  • Cannot be used to overcome incomplete diversity
  • Claims by a PLAINTIFF against an impleaded party may not use supplemental jurisdiction to circumvent the diversity statute. May need FQ!
  • Supplemental jurisdiction is available to DEFENDANT against a third-party defendant / cross-claim

** Restrictions on the use of supplemental jurisdiction apply to plaintiffs only

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33
Q

Supplemental jurisdiction in a diversity case

A

In diversity cases, claims by PLAINTIFFS generally cannot invoke supplemental jurisdiction UNLESS there are MULTIPLE plaintiffs and the claim by ONE does not meet the AMOUNT IN CONTROVERSY requirement
- Defendants can invoke!

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34
Q

Supplemental Jxn Over Joined Party

A

* The supplemental jurisdiction statute specifically prohibits the use of supplemental jurisdiction by plaintiffs against persons made parties under Rule 19. It is also contrary to Rule 19(b), which provides for an analysis of what a court should do if there is a Rule 19(a) party who cannot be joined because of jurisdiction. (A) is incorrect.

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35
Q

** Length of a Temporary Restraining Order

A

A TRO is valid for 14 days, unless the TRO is extended for good cause for a like period.
- If an extension goes beyond the “like period,” courts have held that the TRO is effectively converted into a preliminary injunction and thus becomes immediately appealable under the statute

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36
Q

Two dismissal rule

A

A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any action on the same claim, in which case the dismissal by notice is with prejudice.
- The second dismissal is an adjudication on the MERITS

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37
Q

Voluntary Dismissal

A
  • If the defendant has NOT answered or filed a motion for summary judgment, the plaintiff may dismiss her case by filing a notice of dismissal
  • Otherwise, the court has discretion to grant dismissal on such terms and conditions as the court deems proper. The dismissal is without prejudice unless the court specifies otherwise.
  • If there is a counterclaim pending in the action, there can be no dismissal over the defendant’s objection unless the counterclaim remains pending.
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38
Q

Waiver of Venue

A

Defendant may waive proper venue.

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39
Q

1 year

A

Outer time limit for removal based on diversity

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40
Q

14 days

A
  1. Expiration of TRO
  2. Time to file jury demand after last pleading directed to the jury triable issue is served
  3. Time to appeal denial of class certification / denial of class certification
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41
Q

21 days

A
  1. Time after service of complaint to answer or file a Rule 12 motion
  2. Time to amend pleading once, as a matter of course, after its service or after responsive pleading or motion is served
  3. Time to withdraw pleading after a Rule 11 motion is served
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42
Q

28 days

A
  1. Time after a judgment to file an RJMOL
  2. Time after a judgment to file a motion for a new trial
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43
Q

30 days

A
  1. Time for initial removal
  2. Time for remand
  3. Time to return request to waive SOP (add 30 days outside of US)
  4. Time for appeals
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44
Q

60 days

A

Time to answer the complaint or file a 12(b) motion if defendant WAIVED SOP (add 30 days if outside of US)

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45
Q

90 days

A

General time limit for SOP

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46
Q

Aggregation of Claims

A
  1. SINGLE plaintiff may aggregate all his claims that he has against a SINGLE defendant
    - Claims do NOT have to be related in any way! Permitted regardless of whether the claims are legally or factually related to each other
  2. MULTIPLE plaintiffs are trying to enforce SINGLE right in which they have a COMMON, UNDIVIDED interest
    - Must be allowed by state law (Erie)
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47
Q

Amending the complaint to substitute a defendant

A

Amendments to complaints substituting a NEW defendant ARE allowed and the amendment will RELATE BACK to the complaint IF

  1. Claims in the amendment arise from the SAME TRANSACTION/OCCURRENCE
  2. Within 90 days from filing, the NEW defendant received NOTICE of the action
  3. But for mistake, Defendant knew/should have known that the action would have been against them
    - Amending party need not show reasonable care in the naming of the defendant; must find the error within the time period for serving process.
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48
Q

Amount in controversy for diversity jurisdiction

A

The amount in controversy must exceed $75,000 based on plaintiff’s GOOD FAITH claim

MORE than $75k, i.e., at least $75,000.01.
- Can consider punitive damages

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49
Q

Appeal of non-final orders

A
  1. A party may appeal, as of right, any order granting, continuing, modifying, refusing, dissolving, or refusing to dissolve or modify an INJUNCTION
    - Interlocutory Appeals Act allows appeals of orders relating to injunctions regardless of whether there is unclear case law or whether the judge has certified the issue
  2. Under the Interlocutory Appeals Act, a trial court judge may certify that the order has a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of litigation, and the appellate court may, as a discretionary matter, hear the appeal
    - A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.
    - The Act only offers a discretionary review; it is not reviewable by right
50
Q

Can a federal court transfer or dismiss a case even if venue is proper?

A

Fed Court can transfer/dismiss, even if venue is PROPER.
- Transfer to court where could have been brought

51
Q

Can an impleaded defendant sue the original plaintiff?

A

Yes, MAY if the claim arises from the SAME TRANSACTION/OCCURRENCE as the plaintiff’s original claim. Can also bring at a LATER date / independent action.

52
Q

Canned answer for subject matter jurisdiction

A
  1. Federal courts are courts of limited jurisdiction; in order for a federal court to have subject matter jurisdiction over a claim, it must have been granted subject matter jurisdiction by statute
  2. By statute, federal courts have been granted subject matter jurisdiction primarily in two areas: federal question and diversity of citizenship jurisdiction
  3. For FQ….For Diversity…
  4. Address both!
53
Q

Challenging PJ

A

Objection to PJ may be asserted by pre-answer motion or in the answer itself, provided the objection is in defendant’s FIRST RESPONSE

54
Q

Citizenship of legal representative

A

E.g., on behalf of. For diversity purposes, a legal representative of a decedent assumes the state citizenship of the decedent.

55
Q

Claim preclusion for installment payments

A

In the situation of installment payments, the claimant is required to sue on all installments due at the time of the suit.

  • If there is an acceleration clause, the claimant must sue for all installments.
  • Plaintiff must sue for ALL installments in the FIRST lawsuit. If not, second suit is barred by claim preclusion.
56
Q

Class Action Requirements

A

ALL OF:

  1. Numerous class
  2. Common questions
  3. Typicality
  4. Fair and adequate representation

+ ONE OF (determines type):

  1. Risk of inconsistent results
  2. Injunctive or declaratory relief appropriate
  3. Common questions predominate and a class action is superior to alternate methods of adjudication
    - Only type that requires notice to all class members and allows opting out
57
Q

Collateral attack

A

A collateral attack is the name used to describe a defendant’s ability to challenge a default judgment where the defendant never appeared in the action at all.

  • Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks.
  • Under Rule 4 of the Federal Rules of Civil Procedure, if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a defendant must be served according to the Federal Rules of Civil Procedure. If not, it is considered “procedurally defective” and is therefore subject to a collateral attack. Not entitled to Full Faith and Credit
58
Q

Collateral Order Rule

A

As to a non-final judgment, the collateral order rule may permit a review if the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review.

  • The order then may be classified as a judgment in a separate (“collateral”) proceeding
59
Q

Compulsory counterclaim

A

If a counterclaim arises out of the same transaction or occurrence as one of the plaintiff’s claims, it is a compulsory counterclaim and must be pleaded or the party will be barred from bringing it in a later action.

  • Any other counterclaim is permissive and may be asserted (assuming there is subject matter jurisdiction) even though there is no connection at all between it and the plaintiff’s claim.
60
Q

Compulsory Joinder

A

Usually raised in Rule 12(b) motion to dismiss for failure to join an INDISPENSIBLE party.

  • To determine if the party is truly indispensable
    1. Can COMPLETE relief otherwise not be accorded among parties? If JSL, complete relief may be possible without joinder
    2. Does the absent party have an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent obligations?
61
Q

Contents of deposition notice

A
  1. When giving notice of deposition to an ORGANIZATION, a party may name the organization and state with reasonable particularity the matters to be covered.
    - The organization and the requesting party must then confer about the topics to be covered in the deposition, and the organization will designate individuals to testify about those topics on its behalf
    - Notice to an organization does not have to name a person to be deposed
62
Q

Corporate citizenship

A

A corporation is deemed to be a citizen of

  1. EVERY state where it is INCORPORATED and
  2. The ONE state in which it has its PPB
63
Q

Permissive Counterclaim

A

Does not arise from the same transaction or occurrence as the plaintiff’s claims.

  • May assert it as a counterclaim or bring a separate lawsuit
64
Q

Cross Claim

A

Claim against a co-party. A proper cross-claim arises from the same transaction or occurrence as the original claim.

  • E.g., Defendant 1 v. Defendant 2.
  • NEVER compulsory
65
Q

Entitlement to a jury trial

A

The Seventh Amendment preserves the right to a jury trial for both the plaintiff and defendant for civil actions in federal court of facts in all “suits of common law” where the amount in controversy exceeds $20.

  • The determination is historical and turns initially on whether the claim or relief was available at LAW or in EQUITY in 1791.
  • The Supreme Court has demonstrated a clear preference for jury trials in doubtful cases and has held that, if damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on the ground that they are “incidental” to the equitable relief.
66
Q

Errors during a deposition

A

Errors of any kind which could have been obviated if promptly presented are WAIVED unless seasonable OBJECTION is made at the time of taking the deposition (this applies to form of questions, oath, conduct of parties, etc.).

67
Q

Federal Defense as Grounds for SMJ

A

Subject matter jurisdiction in federal court based on a federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint.

  • The defendant’s answer or defense is not relevant because the existence of a defense based on federal law will not give federal question jurisdiction
68
Q

Final order

A

A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties, but as to all causes of action involved.

69
Q

Forum non conveniens

A

Location of the evidence, language issues, other venue has greater interest in hearing the case

70
Q

Grounds to set aside default

A

An entry of default may be set aside for “good cause shown.” Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense.

71
Q

If an attorney creates a list of individuals with knowledge of a discoverable matter / eyewitnesses, is that list discoverable?

A

Yes, does not fall under Attorney Work Product Doctrine!

  • The FRCP states that the identities of people with knowledge of discoverable matters are discoverable, the plaintiff’s attorney’s list is not considered work product.
  • Identity of the eyewitness is discoverable REGARDLESS of the extent of the plaintiff’s investigation efforts
72
Q

Impleader

A

A defendant cannot assert a third party claim against another party unless they are seeking to obtain recovery for the defendant’s OWN liability to the original plaintiff.
- Derivative liability. “If I’m liable, then you owe me, it’s because of you” ** Not COMPLETE lack of fault!

  • Requires an allegation that a third party defendant will owe defendant if he loses to plaintiff-
    1. Indemnification
    2. Contribution
  • Leave of court is not usually required early in the litigation.
73
Q

Insufficient Process v. Insufficient Service of Process

A
  • Insufficient process: defects in the DOCUMENTS and their content
  • Insufficient SOP: manner in which the documents were presented, delivered and/or served to the defendant

* Two separate grounds for dismissal!

74
Q

Interpleader

A

A way for a HOLDER of property to initiate a suit between two or more CLAIMANTS to the property.

  • E.g., A holds property that he knows he does not own, but that both B and C are claiming, A can sue both B and C in an interpleader action, where B and C could litigate who actually owns the property. Avoids the problem of A being sued separately by both B and C, and potentially losing the same piece of property twice.

The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue.

SMJ: Interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more.

  • Does not require complete diversity! It only requires diversity between the two CONTENDING claimants
  • Statutory interpleader has different requirements

PJ: Permits the federal court to serve process anywhere in the United States.

  • As long as all the claimants reside or can be found anywhere in the country, the federal court can exercise personal jurisdiction over them.
75
Q

JMOL / Directed Verdict

A

No reasonable juror could side with other side
At trial, any time, after party has been fully heard on the issues

  • May be made by any party BEFORE goes to jury
76
Q

Joinder

A

Under the Federal Rules, parties may be joined as defendants whenever

  1. Some claim is made by each plaintiff against each defendant relating to or arising out of the same series of occurrences or transactions; and
  2. There is a question of fact or law in common to all the parties
77
Q

Jurisdiction of the USSC

A

Supreme Court jurisdiction extends to final judgments rendered by the highest court of a state in which a decision could be had.

  • These judgments may be reviewed by the Supreme Court by certiorari where a right is claimed under the federal Constitution
  • Federal issue must be part of the plaintiff’s well-pleaded complaint
78
Q

Jurisdiction over counterclaims

A
  • A compulsory counterclaim does NOT need to meet the jurisdictional AMOUNT requirement for diversity jurisdiction
  • A permissive counterclaim MUST meet the jurisdictional AMOUNT requirement
79
Q

Limits on removal

A

When jurisdiction of the federal court is based SOLELY on DIVERSITY, and one of the DEFENDANTS is a citizen of the state in which the action was brought, the action is not removable.

  • Okay if there is FQ and Diversity
  • Always available for FQ, as long as timely
80
Q

Mandamus

A

Mandamus commands a trial judge to act, and prohibition commands the judge to refrain from acting.

  • The writs are available only if an appeal will be insufficient to correct a problem and the trial court’s actions constitute a serious abuse of power that must be immediately corrected.
81
Q

Motion for a new trial

A

A new trial may be granted because of some SERIOUS ERROR that occurred during the TRIAL

  • Error in ommission of evidence
  • Error in instructing the jury
  • Jury misconduct
  • Excessive/inadequate verdict
  • Verdict goes against evidence presented

* Jury’s verdict should not be overturned lightly

28 days after judgment max; error during trial, verdict against weight of evidence

82
Q

Motion for Judgment on the Pleadings

A

Once pleadings are complete, any party may move for judgment on the pleadings. [Fed. R. Civ. P. 12(c)] A motion for judgment on the pleadings may be filed only after all pleadings are complete, but early enough so as not to delay the trial. In reviewing the motion, the court accepts all facts alleged in all the pleadings as true, and a failure to deny allegations in the complaint constitutes an admission. If the court concludes a party is entitled to judgment as a matter of law, it will grant the motion and render judgment. Failure to state a legal defense to a claim is one listed reason for a motion for judgment on the pleadings.

83
Q

MSJ v. MJOP

A

A party making a motion for judgment on the pleadings and accompanying it with an AFFIDAVIT or other matters outside the pleadings may in reality be making a MSJ, putting the wrong label on the motion.

  • The court is expressly authorized to treat such a motion as one for summary judgment and to conduct subsequent proceedings on the motion in accordance with the rule on summary judgment, giving the parties full opportunity to present material made relevant by that rule.
84
Q

Can a non-party intervene in an action?

A

Under Rule 24, a nonparty may intervene in an action as a matter of right in two situations.

  1. When it has an unconditional right to do so by a federal statute
  2. (i) It has an INTEREST in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and (iii) the nonparty’s interest is not adequately protected by an existing party in the action.
85
Q

Objecting to Venue

A

Objections to venue may be raised in a defendant’s answer if the defendant did not assert a Rule 12(b) pre-answer motion.

  • All defendants do not have to object to venue before the court may dismiss the case on venue grounds
86
Q

Obtaining documents from non-party

A

A party may serve on a nonparty a SUBPOENA that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action.

  • C.f. request for production, used to request documents from PARTIES
87
Q

Can a court grant partial summary judgment?

A

Yes! Summary judgment may be partial as well as complete.

88
Q

Peremptory challenges

A

Cannot be based on race, nationality, religion, gender.

89
Q

Plain error

A

Judge is so wrong that it calls into question his competence

90
Q

Pre-Trial Disclosures

A
  1. Witnesses she expects to call at trial
  2. Witnesses she will call if the need arises
  3. Witnesses whose testimony will be presented by deposition / transcript of portions of that depo
  4. List of documents/exhibits expects to offer/might offer if needed
91
Q

Preservation of the record for appeal

A

Procedural mistakes need to be asserted by a timely objection. Failure to do so WAIVES right from raising issue on appeal.
- Cannot wait and see how the jury will decide…

92
Q

Pretrial conference

A

The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement.

  • This conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties.
  • A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference.
  • The court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust.
93
Q

Procedure for obtaining a default judgment

A 
Default = loses right to contest liability unless the entry of default is set aside. AMOUNT of damages must still be determined before default may be entered. Defaulting party can be heard at hearing for damages.
- Defendant is entitled to NOTICE of hearing by first class mail at least 7 days before the hearing if they has APPEARED in some fashion
Defendant is
- If Defendant never appears, NO NOTICE of default judgment hearing
- CLERK may enter default if the amount of damages is specific and certain, e.g., breach of contract
- JUDGE will enter default if the damages are not certain
94
Q

Procedure for Removal

A

The removal statute provides that the notice of removal should be filed in the FEDERAL district court that geographically encompasses the state court where the action was filed.

  • A copy must be served on the plaintiff
  • Another copy should be filed in the state court from which the action is being removed.

** The filing of the notice in federal court is the step that accomplishes removal of the case from state court to federal court.

95
Q

Remittiur

A

Trial judge believes jury’s award of compensatory damages is so excessive as to shock the conscience; judge may order a NEW TRIAL or offer plaintiff REMITTITUR, give the CHOICE between accepting lesser award or submitting to a new trial

96
Q

Right to jury trial

A

The company is entitled to a jury trial only for issues involving the trespass action. In this case, both legal and equitable issues exist. The defendant is entitled to a jury trial on the legal issues in the case, even though the equitable issue of whether an injunction mandating removal of the building should be issued clearly predominates. Hence, (D) is incorrect. (A) and (C) are incorrect because, as stated, the issue regarding removal of the building is equitable, and thus there is no right to answer it to a jury.

97
Q

RJMOL

A

The court must find that a reasonable jury would not have a legally sufficient basis to find for the party on the issue.

  • Must view in the light MOST FAVORABLE to the non-moving party and without considering CREDIBILITY of witnesses
  • High bar

Procedure: under the FRCP, a JMOL must be made at some point during the trial and a party is limited to the GROUNDS raised in the initial JMOL, since they cannot “renew” ab onjection that was never raised in the first place.

  • Must be made within 28 days of the judgment
  • WHEN was the original JMOL made? Does it contain different INFORMATION / BASIS than the original?
98
Q

RJNOV

A

A judgment notwithstanding the verdict (“JNOV”) is now called a renewed motion for a judgment as a matter of law.

  • To be valid, the party making the renewed motion must have moved for judgment as a matter of law at some time during the trial.
  • Standard: judgment was based upon a verdict that a reasonable jury would not have had a legally sufficient basis to reach a verdict
  • Must be filed no later than 28 days after the judgment is entered
99
Q

Rule 26(f) Conference

A

At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan.

  • The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.
100
Q

Sanctions for motions to compel discovery

A

As long as the party honors the motion to compel, only have to pay reasonable expenses incurred in making the motion. Disregard motion to compel, then sanctions.

Costs must be awarded unless -

  1. The movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action
  2. The opposing party’s nondisclosure, response, or objection was substantially justified; or
  3. Other circumstances exist that make an award of expenses unjustified

Other sanctions

  1. Default judgments for a party who fails to comply with an order to provide discovery
101
Q

Sanctions for pleadings

A

In signing a pleading, the attorney represents, among other things, that he has made a reasonable inquiry into the factual and legal grounds for the pleadings.

  • Had the attorney performed any sort of research into the matter, he would have discovered the correct law?
  • Standard is an objective, not subjective, standard
102
Q

Standard for pleadings in a complaint

A

The federal pleading rules generally require the pleader to assert short and plain statements in the complaint to put the other side on notice of the claim being asserted; detailed assertions of facts underlying the claim are generally not required.

  • However, there are certain special pleading rules that require a party to state more detail under special circumstances, including claims that assert FRAUD or MISTAKE. Under such special circumstances the federal rules specifically require that a plaintiff assert the claim for relief with particularity.
103
Q

Temporary Restraining Order

A

A temporary restraining order may be granted by a court when it is NECESSARY to prevent IRREPARABLE injury to a party, and the injury will result BEFORE a preliminary injunction hearing can be held

  • Generally NOTICE of the hearing for the issuance of the order must be given before it is issued
  • EX PARTE temporary restraining order without notice of the hearing to the adverse party if the moving party
    1. Gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition
    2. Certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required
    3. Provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.
104
Q

Third party claim

A

A defendant may assert a third-party claim against “a nonparty who is or may be liable to it for ALL or PART of the claim against it.”

  • Must be a DERIVATIVE claim, seeking INDEMNIFICATION or CONTRIBUTION from the third-party defendant.
  • CANNOT alleging that he is NOT LIABLE and that the someone ELSE is.
105
Q

Time for correcting clerical mistakes

A

There is no time limit to file a motion for relief from judgment to correct clerical mistakes, and the court order correcting the error dates back to the time judgment was entered. A clerical error is one arising from oversight or omission and may occur in judgments, orders, or other parts of the record.

106
Q

Time to Respond to Complaint

A
  • Answer or other appropriate response within 21 days after being formally served with process / 60 days from the date on which the plaintiff MAILED the summons and complaint (if waived SOP)
  • Must answer 14 days after denial of pre-answer motion
  • If defendant files an answer after a motion for default judgment is filed but before the default is entered, the court must determine whether the defendant has good cause for filing a late xanswer as the court has discretion to extend the time for answering
107
Q

Timing for amending complaint

A
  1. Matter of course: plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the answer.
  2. With permission: under the FRCP, leave of court (to grant motions to amend) is to be “freely given when justice so requires.”
    - The rule does NOT provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice

** For SOL, proposed claims may be considered to “RELATE BACK” to the date of the original pleading in which the claim was made if stems from the SAME FACTS alleged in the original complaint, and the SOL had not expired at the time of the ORIGINAL filing.

108
Q

Timing for appeal of class certification order

A

Grant/deny can be appealed within 14 days of entry of order
- Court of appeals has complete discretion as to whether to hear the appeal

109
Q

Timing for motion for summary judgment

A

During discovery, within 30 days after close

  • Under the rule for summary judgment, a party opposing the motion may present reasons why they need additional time to submit affidavits or obtain depositions.
110
Q

Timing for motion to dismiss for lack of personal jurisdiction

A

A defendant must file a motion to dismiss based on lack of personal jurisdiction at the time he files a motion or at the time he files his answer, whichever occurs first.

  • If he does not, the defendant waives the defense.
111
Q

Timing for motion to reconsider a prior order / renew a prior motion

A

28-days

112
Q

Timing for remand

A

If the plaintiff bases the motion to remand on a defect other than subject matter jurisdiction (i.e., a defect in the removal procedure), the motion to remand must be brought within 30 days of removal.

  • There is no such time limit for a lack of subject matter jurisdiction. The court must remand whenever it is shown that there is no subject matter jurisdiction.
113
Q

Timing for removal

A

A defendant can remove an action that could have originally been brought by the plaintiff in the federal courts within 30 days after receipt by or service on that defendant of the initial pleading or summons, or, if the case is not initially removable, within 30 days of the case becoming removable.
- Cannot remove based on DIVERSITY after ONE YEAR of filing unless bad faith on the part of the plaintiff

114
Q

Timing for renewed JMOL

A

A renewed motion for judgment as a matter of law must be filed no later than 28 days after the judgment is entered.

115
Q

Timing for third party claim

A

A defendant may serve a third-party complaint as of right within 14 days of serving his original answer.

  • Thereafter, he must make a motion to serve the complaint, and it is within the trial court’s discretion whether to grant or deny the motion.
116
Q

Timing to execute a judgment

A

Absent a court order, no execution on judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court.

117
Q

Well-plead complaint

A
  1. Grounds for federal jxn
  2. Short statement showing entitlement for relief
  3. Demand for relief
118
Q

Which claims will a jury hear?

A

If legal and equitable claims are joined in one action involving common fact issues….

  1. The legal claim is tried first before the jury
  2. Then the equitable claim is tried to the court
    - The jury’s finding on fact issues will bind the court in the equitable claim
119
Q

Which motions must be made in first response, otherwise waived?

A

These defenses are waived if not put in the first Rule 12 response:

  • Lack of PJ
  • Improper VENUE
  • Improper PROCESS
  • Improper SOP

“PVPS”

120
Q

Which rules apply for service of process?

A

FRCP: service may be provided by the laws of state in which the federal court SITS or state in which service is to be EFFECTED

121
Q

Who can serve process?

A

Over 18, not a party to action

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